Sentencing Discussion Group, Friday March 8th, 16.00-17.15.
Centre for Criminology, St Cross Building
The Hon Justice Chris Maxwell,
President of the Court of Appeal, Victoria, Australia
Appellate review of sentencing decisions: deference, consistency and raising the tariff
Traditionally, the question on appeal was whether the sentence was “outside the range”: see R v MacNeil-Brown  VSCA 190  – ,  – . (This case discusses the related question of whether the prosecutor can/should assist the judge with a submission identifying the range applicable to the case at hand. By 3-2 majority, we said it was the prosecutor’s duty to do so. On appeal to the High Court, we were told (6-1) that this was “wrong in principle”, an impermissible intrusion into the process of “instinctive synthesis”: see Barbaro  HCA 2. In due course, we developed the formulation “not reasonably open” as the test to be applied on appellate review. The development of that test – and the analogy with judicial review - is explained in an article published in (2017) Public Law Review 3. The decision which best illustrates how we sought to balance consistency/fairness to the offender with the need to raise the tariff is DPP v Dalgliesh  VSCA 148: see  –,  – , [62-] – ,  –  and  – .
Graduating with honours from the University of Melbourne Justice Maxwell completed a BPhil as the Rhodes Scholar for Victoria in 1977 before being called to the Bar as a member of Lincoln’s Inn. Justice Maxwell commenced practice at the Victoria Bar in 1984 and was appointed Queen’s Counsel in 1998. Whilst at the Bar he was counsel assisting the Judicial Inquiry into the Australian Secret Intelligence Service and assisted in the simplification of jury directions as the co-convenor of the Jury Directions Advisory Group. Justice Maxwell was appointed as President of the Victorian Court of Appeal in 2005. Under his direction, the Court of Appeal has instituted a series of reforms seeking to address delays and a backlog of pending appeals. Changes to case management procedures and expanding the capacity of single judges have led to a significant reduction in the number of pending appeals and have halved the time taken to finalise criminal appeals.
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